Volume 2, Spring Issue, 1989 REVISING THE "ORIGINAL" PATENT CLA USE: Pseudohistory in Constitutional Construction * Kenneth J. Burchfiel ** "'Our age is the most parochial since Homer. I speak not of any geographical parish: the inhabitants of Mudcombe-in- the-Meer are more aware than at any former time of what is being done and thought at Praha, at Gorki, or at Peiping. It is in the chronological sense that we are parochial .... ,,l The Past as Precedent In a jurisprudence founded upon case law, questions of legal history occasionally must be of decisive importance. In distinction to civil law systems, where a decision is entitled to little weight as precedent even in a later controversy arising on similar facts, in common law jurisdictions the corpus of published decisions is the principal source of authority for settling legal dispt~tes arising in widely divergent factual contexts. Accordingly, in the United States, the judicial analysis of legal issues necessarily places primary emphasis on a quite specific history, limited to related prior cases in a narrow field of law. The dominant method of legal scholarship emphasizes the close reading of appellate legal opin- ions, in order to rationalize and reconcile the diverse and often incon- sistent results reached and to d=rive universal legal principles by critical comparison of related lines of cases. 2 In the quest for definitive legal norms, history serves in various capa- cities. On the most concrete level, the history of litigation between * Copyright 1988 Kenneth J. Burchfiel. ** Partner, Sughrue, Mion, Zinn, Macpeak and Seas, Washington, D.C., practicing as Gaikokuho-Jimu-Bengoshi, Tokyo, Japan. Fellow, Max-Planck-lnstitut ffir ausl~disches und intemationales Patent-. Urheber-. und Wettbewerbsrecht, Munich, Federal Republic of Germany, 1986-87. A.B. 1973, Amherst College; J.D. 1977, Cornell Law School. I wish to exPress my thanks to the lnstitut for its generous support, and to my colleagues for their encouragement. I. BertrandRussell. On Being Modern-Minded, in UNPOPULARESSAYS 76 (1950). 2. This method of doctrinal analysis is contrasted with the alternatives of positive analysis of law using social science methods, principally economics, and normative az:alysis of law. also based on the social sciences or on moral and political philosophy. Pos;ler, The Present Situation in Legal Scholarship, 90 YALE L.J. I 113 ( 1981). 156 Harvard,lotu'nal of Law & Teclmology [Vol. 2 parties may have preclusive effect in an ensuing dispute. The history of their subjective assertions and negotiations, for example, may define the terms of a legal instrument, such as a contract or a patent. 3 In an analo- gous fashion, legislative history may be relied upon to construe a statu- tory term, and the opinions of the framers may be examined as important sources of history in interpreting the constitutional text. 4 Consideration of the Constitution's historical context generally is required when relying on the plain or necessary meaning of the constitutional language. Even an alternate history of common social values or expectations may be used to refine or redefine the meaning of constittitional texts. 5 it is therefore not surprising that in the heated controversy surround- ing the constitutional activism of the Supreme Court, questions of history often have been at the scorching focus of the debate. Adopting and elaborating the metaphor of a "living Constitution, ''6 the Warren and 3. Of course, the objective understanding of a term in the trade may also be relevant his- tory in construing contract provisions, and the objective technological history of an era con- tained in "prior art" publications may be used to define the legal scope of patent claims. 4. The opinions of the framers are generally regarded as important sources of history in constitutional interpretation. A minority of commentators, however, categorically denies the relevance of the drafters" intention. See, e.g.. R. DWORKIN, LAW'S EMPIRE 359--69 ( 1986); Simon, The Authority of the Framers of the Constitution: Can Orighlalist Interpre- tation be Justified?, 73 CALIF. t. REV. 1482 (1985); Sandalow, Constitutional Interpreta- tion. 79 MICH. L. REV. 1033, 1062-64 ( 1981 ). Particularly in constitutional law, arguments distinct from those based on precedent and drafters" intent are regarded as persuasive. At least five categories of constitutional argu- ment can be distinguished: arguments from the plain meaning of constitutional text; argu- ments about the framers' intent: arguments based on functional or structuralist holistic con- stitutional theories: arguments based on judicial precedent; and value arguments based on assumptions regarding justice or social policy. See Fallon, A Constrtletivisr Coherence Theory of Constittttional htterpretation, 1O0 HARV. L. REV. 1189 (1987). While urging the theoretical precedence of the first three categories, Fallon concedes that in practice, "[c]onstitutional disputes frequently abound with analysis of the meaning of judicial pre- cedents. Indeed, constitutional arguments sometimes address themselves almost entirely to the meanings of previously decided cases." ld. at 1202 (citing. inter alia, Monaghan, Tak- ing Supreme Court Opinions Seriously, 39 MD. L. REV. 1 (1979): Michelman, Constancy to an Ideal Object. 56 N.Y.U.L. REV. 406 ( 1981 )). 5. See. e.g.. Tushnet. Followhlg the Rules LaM Down: A Critique of hlterpretivism and Neun'al Principles, 96 HARV. L. REV. 781. 795 n. 39 (1983) (legislative debate of the fourteenth amendment is unpersuasive, when contrasted with a history including "'detailed and illuminating analyses of the political and social history of Reconstruction"); Welling- ton, Common Law Rules and Constitutional Double Standards: Some Notes on Adjudica- tion, 83 YALE L. J. 221. 248 (1973) (a society's "'conventional morality'" can be filtered out from the demands of moral "'interest groups" by judges who possess "a necessary his- torical perspective"). 6. Judicial reinterpretation of concepts such as due process, equal protection, and cruel and unusual punishment has largely replaced amendment as the practical method of consti- tutional development. See Grey, Do We Have an Unwritten Constittttion?, 27 STAN. L. REV. 703 ( 1975): Reich, Mr. Justice Black and the Livhrg Constitution. 76 HARV. L. REV. 673 ( 1963): Rehnquist, Tire Notion of a Living Constitution, 54 TEX. L. REV. 693 ( 1976): Reich, Tire Living Constitution and the Corrrt's Role. in HUGO BLACK AND THE SUPREME COURT 133 (S. Strickland ed. 1967). Spring, 1989] Revising the "'Original" Patent Clause 157 Burger Courts revealed a willingness to reconsider the breadth of the fundamental constitutional guarantees and restrictions upon government action, based upon a changing view of the mores and conventions of twentieth-century society. 7 These Courts frequently proclaimed new constitutional doctrines that openly diverged from historical precedent. 8 A recurring theme in the battle between constitutional reformists and "strict constructionists" has been the proper use of history in constitu- tional interpretation. More specifically, at issue has been the weight to be given to the opinions and assumptions of the constitutional drafters, expressed either at the time of the Philadelphia Convention or in the ensuing ratification debates. In order to constrain activist judges from supplying constitutional values and norms from their individual personal wealth, 9 a return to the "original intent" of the framers has been advo- cated by a significant minority of commentators. ~° Invoking this 7. At least since Brown v. Board of Education, 347 U.S. 483 (1954), the judiciary has assumed that it has wide latitude in redefining constitutional terms in the attempt to provide "evolving standards.., that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 100-01 (1958). 8. See, e.g., Reynolds v. Sims, 377 U.S. 533 (1964) (the equal protection clause of the fourteenth amendment requires apportionment of seats in both houses of bicameral state legislatures on a population basis); Griswold v. Connecticut, 381 U.S. 479 (1965) (constitu- tional right of married couples to use contraceptives); Griffin v. Breekenridge, 403 U.S. 88 ( 1971 ) (constitutional right of privacy under ninth amendment); Roe v. Wade, 410 U.S. 113 (1973) (right of privacy requires right of elective abortion in first trimester of pregnancy); Furman v. Georgia, 408 U.S. 238 (1972) (discretionary death penalty violates Eighth Amendment prohibition of cruel and unusual punishment). O. In seeking to extend constitutional protection to "genuine" manifestations of contem- porary moral culture, such as the option of elective abortion, a typical argument is that [u]ltimately... each individual Justice... must ask whether particularized claims about that culture resonate with him or her. The Justices, after all, are not unfami- liar with conventional mores and attitudes; in truth it is unlikely that a very uncon- ventional person would become a Justice of the Supreme Court. The collectivity which is the Supreme Court is, in this sense, a jury, and as a matter of political real- ity the Court is a jury that generally will reflect and mediate the temper of the dom- inant political and moral culture. Perry. Abortion, the Public Morals, and the Police Power: The Ethical Function of Sub- stantive Due Process, 23 U.C.L.A.L. REV. 689, 730--31 (1976) (citations omitted); see generally, Fish, Fish v. Fiss. 36 STAN. L. REV. 1325, 1333-34 (1984), J. ELY, DEMO- CRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 43-72 (1980) [hereinafter DEMOCRACY AND DISTRUST]; L. TRIBE, AMERICAN CONSTITUTIONAL LAW 11-13 (1978). 10. See, e.g., R. BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT (1977): W. CROSSKEY & W. JEFFREY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED STATESi THE POLITICAL BACKGROUND OF THE FEDERAL CONVENTION 3-38 (1980); Bork, Neutral Principles and Some Fh'st Amendment Problems. 47 IND. L. J. 1 (1971); Monaghan, Out" Perfect Constitution, 56 N.Y.U.L. REV. 353, 375-76 (1981); Rehnquist, The Notion of a Living Constitution.